Florida Bar Supreme Court opinion provides guidance regarding ethical payments to fact witnesses in litigation

Hello everyone and welcome to this Ethics Alert which will discuss the recent (December 28, 2018) Florida Supreme Court opinion which discusses the ethical requirements surrounding witness fees and guidance lawyers regarding Florida Bar Rule 4-3.4(b) which prohibits inducements to fact witnesses to testify.  The case is: Trial Practices, Inc. v. Hahn Loeser & Parks, LLP etc. No. SC17-2058 and the opinion is here: https://www.floridasupremecourt.org/content/download/425462/4585484/file/sc17-2058.pdf

The underlying case involved a dispute between two business partners.  One of the partners hired Trial Practices, Inc. (TPI) for consulting services in the litigation, which ended in a mistrial and was later settled.  After the settlement, TPI claimed the 5% fee based on the value of certain transferred property and the settlement of related litigation involving the partners.

The partner denied owing TPI the 5% fee and claimed that the settlement agreement was a “walk away” agreement with no “gross recovery” to either side.  TPI then sued the partner for breach of the consulting agreement and, in the trial that followed, the jury found for the partner on all issues.  The partner then pursued attorney’s fees and costs from TPI, which challenged the costs, including approximately $236,000.00 paid to “seven fact witnesses’ professional firms,” some of which helped prepare the settlement agreement in the original litigation.

The Second District Court of Appeal upheld most of the trial court’s award of costs and fees to the partner, but certified a question to the Supreme Court as to whether Bar Rule 4-3.4(b) allows payments to witnesses for case and discovery preparation.  The court slightly rephrased the certified question as: 

Whether under the Bar rule a fact witness could be paid for “case and discovery preparation that is not directly related to the witness preparing for, attending, or testifying at proceedings.” 

The opinion (written by Justice Charles Canady) answers that question in the negative and cautioned lawyers to be careful when compensating witnesses to avoid any perception they are trying to influence the testimony in violation of Florida Bar Rule 4-3.4(b).  That rule prohibits offering inducements to witnesses except for expenses related to testifying, a reasonable fee for expert witnesses, and the language in the pre-2014 version at issue in the case, “reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings…”.  Bar Rule 4-3.4 was amended in 2014 to remove “reimburse” and “loss of compensation” from the language since that language arguably prohibited lawyers from compensating witnesses who have no income.

The opinion states that Rule 4-3.4(b) involves the balancing of concerns over offering or paying inducements for testimony and recognizing the value of the time expended by the witness and providing an incentive to assist with the “truth-seeking function of the trial process.”

“Athough we conclude that ‘preparing for, attending, or testifying at proceedings’ can reasonably be interpreted to include certain ‘assistance with case and discovery preparation,’ we also reiterate the importance of rule 4-3.4(b) and the prohibition against improperly influencing witnesses…(o)ur disciplinary cases have repeatedly noted – both in the context of rule 4-3.4(b) and otherwise – the importance of avoiding even the appearance of improper influence. Although we do not find these disciplinary cases to be on point, we emphasize the narrow nature of the issue we address here.”


“permitting payments for any type of ‘assistance with case and discovery preparation’ would not only be inconsistent with the rule’s plain language but could open the door to purchasing testimony under the pretext of such ‘assistance’ and compromise the integrity of the fact-finding process – the very thing rule 4-3.4(b) is designed to prevent. We thus decline to broadly conclude that ‘assistance with case and discovery preparation’ is subsumed within ‘preparing for, attending, or testifying at proceedings…(h)owever, we also recognize – as this case demonstrates – that there is room for overlap between the two categories. We therefore also decline to adopt a view that effectively treats the two categories as mutually exclusive.

“We think the more appropriate inquiry is whether the witness’s ‘assistance with case and discovery preparation’ is directly related to the witness ‘preparing, attending, or testifying at proceedings.’ Although less than perfectly precise, viewing the payments through that narrower lens is consistent with the language of the rule and avoids prejudicing parties in highly complex cases such as this where they are dependent upon professionals.”

The opinion remanded the case to the trial court for further proceedings consistent with the decision.

Bottom line:  This opinion attempts to clarify the rule regarding ethical payments to fact witnesses in litigation which are not improper inducements and concludes that payments to fact witnesses are permitted only when the assistance of the witness with the case and discovery preparation is directly related to the witness preparing, attending, or testifying at proceedings.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670




About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
This entry was posted in Attorney ethics, corsmeier, Florida Bar ethics, Florida Bar Rule 4-3.4(b) payments and inducements to fact witnesses, Florida Bar Rules, Florida Supreme Court opinions, Florida Supreme Court Rule 4-3.4(b) payments and inducements to fact witnesses, joe corsmeier, joseph corsmeier, Lawyer Ethics, Lawyer ethics payments to fact witnesses, Lawyer litigation costs, Payments to fact witnesses, Uncategorized and tagged , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s